On Monday, June 27, 2011, federal Judge Thomas W. Thrash, Jr. temporarily blocked the implementation of two sections of Georgia’s controversial immigration law, House Bill 87. He did so by issuing a preliminary injunction, which prevents the state of Georgia from enforcing these sections of the law until a final determination can be made by a federal court as to their constitutionality.

The first part of HB 87 blocked by Judge Thrash is Section 8, which authorizes the police to investigate the immigration status of a criminal suspect and detain him if he has no lawful status in the United States.

The second blocked provision is Section 7, which makes it a crime to transport or harbor an undocumented immigrant or induce an undocumented immigrant to come to Georgia.

Judge Thrash held that Sections 7 and 8 are likely to be found unconstitutional because they violate the Supremacy Clause in Article VI of the Constitution, which states that federal law is the “supreme Law of the Land” and that states are bound to uphold it. Generally, states are prevented (or “preempted”) from legislating in a way that undermines Congressional efforts in the same area.

Section 8: Why Can’t State Police Investigate and Detain Individuals Who Have Violated Federal Immigration Laws? Section 8 is a problem, Judge Thrash reasoned, because it gives so much discretion to local police officers. Under Section 8, police officers may choose whether to investigate a criminal suspect’s immigration status, and may also choose whether to detain or release any given suspect who is unlawfully present. Thus, Section 8 substitutes the discretion of the local police for that of the federal government in setting immigration enforcement priorities. It “poses a serious risk that HB 87 will result in inconsistent civil immigration policies not only between federal and state governments, but among law enforcement jurisdictions within Georgia.”

This is why, Judge Thrash explained, the federal Immigration and Nationality Act (INA) does not permit states to enforce immigration law except in certain very limited circumstances, when the Attorney General has specifically authorized and continues to monitor the enforcement (for example, in the case of what are known as “287(g) agreements”).

Why Doesn’t Section 8 Violate the Fourth Amendment? In addition to arguing that Section 8 violates the Supremacy Clause of the Constitution, with which Judge Thrash agreed, the plaintiffs in this case also argued that Section 8 violated the Fourth Amendment. The Fourth Amendment prevents unreasonable arrests and detention by law enforcement. Detention that is not based on an underlying crime is unreasonable. Simply residing in the United States without documents (by overstaying one’s visa, for example) is not a crime, Judge Thrash correctly noted that it is a civil violation. The Fourth Amendment would not permit police to hold a person solely on that basis.

But investigating someone’s immigration status pursuant to Section 8 would not necessarily prolong his or her detention, Judge Thrash reasoned. Section 8 allows officers to investigate someone’s immigration status when they have cause to believe that the person has committed or is committing another crime. If, for example, if an officer arrests a man for selling drugs, taking the time to check his immigration status while he is detained would not extend his detention beyond that which the law already considers appropriate for that offense. But if an officer detains a man solely to check his immigration status, or lengthens his detention only to perform such a check, that officer likely would be violating the Fourth Amendment.

Section 8 would not always, in every circumstance, create a Fourth Amendment problem. Therefore, Judge Thrash could not block Section 8 wholesale on this ground. If the judge had been presented with particular examples of officers acting in an unconstitutional manner, he might then have ruled that Section 8 violated the Fourth Amendment as applied to those individuals. But that was not the nature of the case before him. The point of this case was to try to block Section 8 before any local officer had an opportunity to enforce it.

Section 7: Can States Criminalize the Transportation and Harboring of Individuals Who Have No Legal Status in the U.S., or Is This Also Blocked by Federal Law? Section 7 defines the term “harboring” much more broadly than federal immigration law does, Judge Thrash noticed. Section 7 therefore creates new and different immigration crimes at the state level.

Thus, both Section 7 and Section 8 try to create a separate state system for identifying and punishing immigration violators, giving state officers substantial discretion to establish their own immigration enforcement priorities separate and apart from those identified by the federal government. Judge Thrash therefore would not let these sections go into effect.

Judge Thrash easily distinguished the United States Supreme Court’s recent decision to permit Arizona to mandate the federal E-Verify system in that state and to punish businesses that hire unauthorized workers by revoking their business licenses. Unlike Section 7, Arizona’s employer sanctions statute fits neatly into an explicit Congressional carve-out for state efforts. Furthermore, while Arizona’s employer sanctions statute falls within a field traditionally regulated by the states (the employer-employee relationship), Section 7, which Judge Thrash described as regulating the movement of immigrants, does not.

Judge Thrash used some very strong language in opposition to the policies underlying the entire bill. “The widespread belief that the federal government is doing nothing about illegal immigration is a myth,” he said. The assertion that the federal government has been “passive” in enforcing immigration law “has no basis in fact.” He further described HB 87 as an attempted “end-run” around the comprehensive federal immigration enforcement scheme that was designed to allow the Executive Branch to set enforcement priorities.

But he saved his most vigorous condemnation for Section 7: “The Defendants’ claim that the new criminal statutes [in Section 7] will prevent exploitation of illegal aliens is gross hypocrisy. The apparent legislative intent is to create such a climate of hostility, fear, mistrust and insecurity that all illegal aliens will leave Georgia.”

Is Anything Left of HB 87 After This Decision? Yes. Among other things, HB 87 also does the following: enacts a mandatory E-Verify program (Sections 3 and 12); creates a new crime of “aggravated identity fraud” (Sections 4-6); authorizes federal/state law enforcement partnerships (Sections 9-11); mandates that officers use “a reasonable effort” to verify whether any foreign nationals confined in county or municipal jails had been “lawfully admitted to the United States and if lawfully admitted, that such lawful status has not expired” (Section 13); mandates that any undocumented immigrant in custody be “detained, arrested, and transported as authorized by state and federal law” (Section 13); requires certain documentary proof of “lawful presence” for the receipt of public benefits (Section 17); and creates the “Immigration Enforcement Review Board” (Section 20). None of these sections were addressed in this case.

What’s next for HB 87? The Attorney General of Georgia, Sam Olens, has appealed Judge Thrash’s ruling to the 11th Circuit U.S. Court of Appeals. That may take a while. In the meantime, Sections 7 and 8 remain blocked. CLINIC will follow all developments with respect to HB 87 and will continue to keep our affiliates informed.

Part 2: Federal Judge Temporarily Blocks Part of Indiana’s SEA 590

Introduction. On June 24, 2011, federal Judge Sarah Baker temporarily blocked the implementation of two sections of Indiana’s controversial immigration law Senate Enrolled Act 590 (SEA 590). She did so by issuing a preliminary injunction, which prevents the state of Indiana from enforcing these sections of the law until a final determination can be made by a federal court as to their constitutionality. SEA 590 was scheduled to go into effect July 1, 2011.

The first part of the law that Judge Baker blocked is Section 19, or the portion of SEA 590 that authorizes police officers to make warrantless arrests of anyone who: “(a) has been ordered to leave the U.S. by a judge; (b) has been issued a federal immigration detainer or notice of action; or (c) has been indicted for or convicted of one or more aggravated felonies.

The second provision is Section 18, which made it an offense for anyone other than a police officer to knowingly or intentionally accept consular identification as a valid form of identification. This article will discuss only Section 19.

Warrantless Arrests in Section 19: What Are Orders Of Removal, Detainers, And Notices Of Action? “Removal” is the current legal term for deportation. A removal order is issued by an immigration judge if, after a hearing, the government has sufficiently proven that the person is a noncitizen and that he or she is removeable based on one or more of the deportation grounds listed in the INA.

A detainer is a request – not a mandate or a criminal arrest warrant – made by federal immigration authorities to the local jail that is already holding someone on a non-immigration related criminal violation. The detainer asks that the jail continue to hold that person for no more than 48 hours beyond the time permitted by state law for the underlying offense. This 48-hour window allows ICE to take custody of the individual if it so chooses.

A notice of action is merely a federal form (Form I-797) used to communicate with a person whose immigration petition is pending. The subject matter of a notice of action can be as mundane as merely acknowledging receipt of the petition.

Is It a Crime To Be the Subject of a Removal Order, Detainer, or Notice of Action? No. Simply being the recipient of a removal order, a notice of action, or a detainer is not a crime under either federal or Indiana state law.

Though it may seem incredible given the severity of the consequences of deportation for the individual and for his or her family, removal is a civil (or administrative) remedy, not a criminal punishment, and removal proceedings take place in an administrative immigration court system, not the criminal court system.

Is It a Crime To Have Been Indicted or Convicted of an Aggravated Felony? No. It is not a crime under either federal or Indiana state law to have been indicted or convicted of an aggravated felony. Someone who has been indicted for a felony should not be punished until a trial is held and he or she is found guilty. After the person has served the sentence, a person who has been convicted of a felony is not then punished again simply for being a convicted felon.

Furthermore, whether any particular criminal conviction gives rise to immigration penalties is not a straightforward calculation, and local police cannot be expected to make the complex determination that a particular criminal is removable from the United States absent a federally-issued removal order.

Aren’t Federal Immigration Officers Supposed To Arrest Anyone Who Has Received A Removal Order? Not necessarily. Under federal law, a person may be arrested and detained by ICE once removal proceedings have begun and before a final decision has been made. This is not technically a criminal matter either, despite the similarity of the language (“arrest” and “detention”) used in criminal law.

But such an individual need not be detained. In fact, a person whose removal order is pending or already has been issued by an immigration court may be released on bond or conditional parole, and may even be legally authorized to work. A removal order is not the end of the line for an individual. He may still appeal that order – during which time he may (or may not) be administratively detained by the federal government – until he receives a final decision (at which time the removal order “becomes final”). Even at this late stage, in some circumstances, he may be permitted to reopen the removal proceedings.

The Constitution requires that, once a removal order becomes final, a person may only be detained by the federal government for 90 days. If the federal government cannot deport an individual by the end of the 90 days, he must be released from detention subject to supervision.

Why Is Section 19 Unconstitutional? Judge Baker declared that Section 19 is likely unconstitutional on two grounds. First, it violates both the Fourth Amendment and constitutional due process requirements. Second, it violates the Supremacy Clause in Article VI of the Constitution.

Fourth Amendment and Due Process. “Section 19 authorizes state and local law enforcement officers to effect warrantless arrests for matters that are not crimes,” wrote Judge Baker. That is the crux of the Fourth Amendment problem. The Fourth Amendment requires that arrests be reasonable, and arrests are only reasonable if the officer has probable cause to believe that some criminal offense has been or is being committed.

Judge Baker also objected to the “deafening silence” in Section 19 about what happens to a person after his or her arrest. That is, Section 19 did not spell out any due process protections for the person arrested as required by the Fifth and Fourteenth Amendments. Will the person be eligible for bail? What if ICE does not want to take custody of the person? Will he or she be detained indefinitely? These are questions that Section 19 leaves unanswered.

The Supremacy Clause and Preemption. The Supremacy Clause in Article VI of the Constitution declares that federal law is the “supreme Law of the Land” and that states are bound to uphold it. Generally, states are preempted from legislating in a way that undermines Congressional efforts in the same area.

Federal regulatory schemes (like our nation’s vast system of immigration laws) block state action when “compliance with both federal and state regulations is a physical impossibility or when state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”

Judge Baker held that states generally have no authority to enforce federal immigration law in the absence of an appropriate partnership with the federal government (such as a “287(g) agreement”). Indiana currently has no such agreement with the federal government, and Section 19 authorizes arrests in circumstances that are much broader than those permitted to states working in partnership with the federal government.

The problem with Section 19 is that it interferes with federal discretion to set enforcement priorities and select enforcement methods. Relying on the U.S. Ninth Circuit Court of Appeals’ recent decision to block many sections of Arizona’s infamous SB 1070, Judge Baker ultimately held that it is “reasonable to predict” that many arrests made pursuant to Section 19 – that is, state-level arrests of people who may not actually be subject to federal detention – “will be in direct contravention of ‘the carefully calibrated scheme of immigration enforcement that Congress has adopted.’”

Is Anything Left of SEA 590 after this Decision? Yes. Among other things, SEA 590 also: prevents the establishment of any “sanctuary” locality or agency; prohibits officers from checking the immigration status of victims of and witnesses to crime (Section 3); creates certain tax consequences for hiring unauthorized workers (Sections 4-7); verifies the immigration status of any “committed criminal offender” (Section 8); requires that the immigration status anyone over 18 who applies for federal or state public benefits be verified, with certain exceptions (Sections 13 and 14); mandates that businesses use the federal E-Verify program to determine work authorization (Section 16); permits police officers to submit a complaint to ICE if they have probable cause to believe that an individual has engaged in day labor in violation of federal immigration law (Section 17); places restrictions on bail for unlawfully present individuals (Section 22); and punishes transporting, moving, harboring or concealing an unlawfully present immigrant for the purpose of commercial advantage or private financial gain (Section 24).

What’s Next for SEA 590? The Attorney General of Indiana, Greg Zoeller, has announced that he will not appeal Judge Baker’s preliminary injunction. That means that Sections 18 and 19 will not be able to go into effect for the time being. The next step is for the federal court to make a final determination of the sections’ constitutionality. That may take a while.

It is always possible that civil rights groups will mount yet another court challenge to SEA 590, targeting parts of the law that have not yet been addressed and remain in effect. CLINIC will follow all developments with respect to SEA 590 and will continue to keep our affiliates informed.

For more information about these cases and about all state and local immigration initiatives, please contact Karen Siciliano Lucas at klucas@cliniclegal.org[2].